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LSUC action on advertising coming this year

Looking forward to 2017, Paul Schabas is hoping to move the dial forward on a number of issues.

Paul Schabas says a much-anticipated report by the Law Society of Upper Canada on personal injury advertising will come before Convocation for recommendations by February at the latest.

The treasurer of the Law Society of Upper Canada had an eventful first six months overseeing the regulator, as Convocation passed recommendations looking to tackle systemic racism in the legal profession and extended the controversial Law Practice Program after considering scrapping it.

One of the issues the law society is looking to tackle in the new year is the enforcement and regulation of advertising in the legal profession and, in particular, the personal injury bar.

Schabas says he expects the law society’s much-anticipated report on the topic will come before Convocation for recommendations no later than February.

One of the main problems raised by stakeholders in the report’s consultation process has been misleading marketing by firms that advertise work they refer out and have no intention of doing. They say this risk is damaging the public’s confidence in the profession.

“There’s nothing per se wrong with advertising,” Schabas told Law Times in an end-of-year interview.

“It’s constitutionally protected speech, but where it’s not in the public interest, where it’s contrary to the public interest, if it’s misleading, then we as the regulator have to have some ability to intervene and step in to deal with those things.”

The law society’s professional regulation division has set up a designated team of investigators and prosecutors to deal with 90 active files the regulator has in response to complaints about advertising.

It isn’t clear yet what shape the recommendations will take, but some observers hope there will be a tightening of the rules concerning misleading advertising and referrals.

Adam Wagman, president of the Ontario Trial Lawyers Association, has pushed for a ban on second-opinion ads, which encourage people to change lawyers, and a 10-per-cent cap on referral fees.

Wagman says he is optimistic the law society will take a hard look at advertising rules as well as how they are enforced.

“There is a perception out there currently that even if a complaint is made to the law society about alleged improper advertising or marketing activities, that process takes a very long time and, as a result, I know that certain complainants have been quite frustrated with the process and sometimes those complaints just don’t get made as a result of that perception,” Wagman says.

“And that perception needs to change.”

Looking back at his first six months in the treasurer’s chair, Schabas takes particular pride in the role he played in getting the report on the barriers faced by racialized licensees to a vote.

The report had been “stalled” as committee members argued over what should and should not be included in the recommendations, until Schabas says he stepped in.

“It needed a bit of a kick from someone who was willing to take the leadership in pushing it forward,” he says.

“I think there were, as there always are in that area, a lot of little differences and so on and people were letting little things be the enemy of a good result. I said let’s get past those small things and get something done that is very progressive and positive for the profession.”

The LPP was extended in November after the law society heard from more than 90 individual supporters of the LPP program, decrying recommendations to end the program after its three-year pilot.

Schabas, who was a vocal opponent of the LPP before he became treasurer, says he was surprised by how engaged the profession was in the debate that ensued after the original recommendations were released.

“I think we all recognized that the LPP has certain strengths,” he says.

“The course is innovative. It provides a path to licensing that doesn’t exist for some people. It has a disproportionate number of racialized candidates that were needing to use this path, unfortunately, but I was struck by across the board the engagement of the profession in this discussion. The support that we heard about the LPP was also indicative of a concern about our existing process.”

Convocation’s extension of the LPP also kicked off a continued evaluation of the entire licensing process. Schabas says the committee spearheading the review will introduce a “road map” to Convocation in January to guide the evaluation.

Schabas says that road map will include a plan for the consultations and research that will be done in the analysis.

David Sterns, the president of the Ontario Bar Association, says the licensing process has many issues that need to be tackled in the upcoming review, such as a shortage of articling positions.

“We’re glad that the Law Practice Program is going to be preserved in case it ends up becoming part of a broader solution. It may be, given how it has actually accomplished its mission so far in its first three years,” he says.

Observers expect the issue of whether to broaden the scope of who can practice family law will also be a big focus of the law society in the coming year.

The law society is waiting to see the results of a report by Justice Annemarie Bonkalo concerning whether the scope should be broadened to allow paralegals to practice in the area. The law society is co-sponsoring the report, which was due to be released by the end of 2016, with the provincial government.

Supporters of the idea have said it could be good from an access to justice standpoint, as many Ontarians do not have legal representation in Family Court. Opponents, however, say they are concerned it could erode the current standards and force lawyers out of the family law marketplace.

“We remain unconvinced that expanding scope of practice for paralegals would improve access to justice in areas like family law,” says Michael Ras, executive director of the Federation of Ontario Law Associations.

Schabas says the law society will examine the report once it is released.

“Family law is obviously an area where there are access to justice problems and there are big questions around what Justice Bonkalo was charged with which was how should people be represented in the family law process,” he says.

“So we’ll see what she says about the role of lawyers, the role of paralegals, perhaps the role of others in the process.”

The treasurer is also looking to continue other initiatives in the new year such as attempts to make the law society more transparent, the work of a governance task force and continuing to develop an indigenous framework in response to the Truth and Reconciliation Commission’s call to action.

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Law Times Poll

Ontario lawyers and bencher contenders recently said they are hoping that new proposed rules for alternative business structures limit the corporate influence on lawyers. Will this issue be something that factors into your voting for the upcoming election for benchers at the Law Society of Ontario?

Yes, this issue will influence how I vote.

No, I think there are other issues of greater significance facing the profession.